Your Gerrymander or Mine?

By Ken Gormley;

Published: July 7, 1995

PITTSBURGH—
The Supreme Court's decision declaring Georgia's 11th Congressional district unconstitutional is more than a setback for minority groups in their battle to gain fair representation. It reflects a serious misunderstanding of how redistricting works.

The ruling, in Miller v. Johnson, follows Shaw v. Reno, the 1993 case that invalidated a North Carolina Congressional district that was shaped like a carnival serpent.

Georgia's 11th Congressional district, which made its way from the outskirts of Atlanta to the coastal areas of Savannah 260 miles to the southeast, had likewise been drawn to create a new black majority district. But the Court's decision in this case casts a longer shadow, because it ruled that whenever race is the "predominant factor" in creating a legislative district, the equal protection guarantee of the 14th Amendment is potentially violated.

What this judgment completely ignores is that race is constantly at work in the political maneuverings behind reapportionment. Most redistricting plans are drafted by state legislatures or special commissions, and there are limitless numbers of possible configurations.

If the Justice Department cannot direct legislators to draw minority districts -- as it did in Georgia and has consistently done using its power under the Voting Rights Act -- legislatures will busily draw lines to exclude minorities.

My own experience working with the Pennsylvania Reapportionment Commission convinced me of this. It consisted of four members of the State Legislature, two Democrats and two Republicans, overseen by an outside chairman, a respected Pittsburgh lawyer.

I recall one afternoon when House Democrats, who were drawing up their own redistricting proposals, assured both the chairman and me that their proposed districts were 100 percent "racially kosher" under the Voting Rights Act. They had enlisted the help of a voting-rights expert, they said, who had reviewed the map and guaranteed that African-Americans and Latinos had been treated fairly.

We asked to meet this person, and were led into a vacant computer room, where we shook hands with a white incumbent legislator from Philadelphia, whose seat was in jeopardy because of a growing population of black voters. He had drawn up proposed districts for the city that would save his political skin. This was the "voting rights expert."

If someone isn't deliberately creating districts that enable minority groups to create a majority pool of voters, someone else will be deliberately (if quietly) creating districts that do the opposite.

Why else did Georgia have zero black Congressional districts before 1972? Why did blacks make up a majority in only one of the state's 10 Congressional districts between 1980 and 1990, when blacks made up more than one-quarter of the state's population?

Abigail Thernstrom, a senior fellow at the Manhattan Institute, a research group, argues that the intentional creation of minority districts is dangerous because it leads to "de facto apartheid." Yet if you visit the black and Latino neighborhoods in Philadelphia -- which the Pennsylvania reapportionment commission members did -- you realize that "de facto apartheid" already exists. The only question is whether you draw lines around these voters and give them the passkey to power.

I am not suggesting that blacks must elect blacks and whites must elect whites. In Philadelphia, one majority black Senate district created by the commission re-elected a white woman, Allyson Schwartz. The Voting Rights Act mandates only that minorities have an opportunity to elect "candidates of choice." The Miller ruling, read too literally, may strip them of that basic opportunity.

"If angels were to govern men," James Madison wrote, controls over government would be unnecessary. But so long as men and women govern, race will continue to be taken into account. Until we devise a more perfect system, the Supreme Court should be wary of preventing Congress from leveling the playing field.

Drawing.

Ken Gormley, an associate professor at Duquesne University School of Law, was executive director of the Pennsylvania Legislative Reapportionment Commission in 1991.